What will happen when COVID-19 reaches our local jails and prisons in North Carolina? Without a change to state policy, we fear the worst. Many facilities are already overcrowded and have inadequate living conditions. But with the new coronavirus spreading and multiplying throughout the state, staff shortages, lack of adequate medical care and rapid contagion are a near-certainty if action is not taken immediately.
Universities, courts (which have largely closed), and entire communities, cities, and states are taking drastic action to respond to this national emergency, mandating that people engage in social distancing and stay at home. Jail and prison environments housing multiple people in close quarters cannot assure social distancing. Thus, people who are incarcerated are at extreme risk. As one former New York City corrections administrator put it, “nobody has invented a more effective vector for transmitting disease than a city jail.”
One of us is a lawyer who studies jail populations and sentences that result in long prison terms, as well as the impact of unnecessary pre-trial detention. One of us is a public health researcher who studies the impact of incarceration on health. Both law and public health approaches matter more than ever. A broad coalition of advocates has just asked state officials to take immediate action to avert a crisis. The COVID-19 response must be fast, as we may have only days — not weeks — to adopt vital harm reduction strategies regarding arrest and incarceration that have been resisted for decades. These strategies include rethinking who should be incarcerated.
Let’s start with our jails. For far too long, people have been jailed across the state for inability to pay cash bail, not because of pressing public safety concerns. In far too many cases, these people not been convicted of a crime — and are, in fact, presumed innocent — but now find their health and lives imperiled through their involvement in the justice system. We are gratified to hear that some jails and district attorney’s offices are considering immediately releasing defendants who pose no threat to public safety. But these efforts must be coordinated through a statewide policy.
In addition to releasing pre-trial detainees from our jails, correctional facilities should consider releasing people who are infirm or elderly. There is no statewide policy for early release of these individuals in North Carolina. But a number of jurisdictions around the country, including Mecklenburg County, Guilford County, and Durham County, have already begun releasing them. These efforts must expand.
In North Carolina, prisoners are still working in poultry plants, as the Marshall Project recently reported. The Department of Public Safety says aggressive cleaning efforts are underway at all prisons. But disinfectants, safety posters and testing alone will not prevent a public health disaster. Other states have made recommendations that promote the release of prisoners from such work environments to reduce the spread of the virus. North Carolina must do the same.
Judges will have to be involved in ordering releases. So far, the main statewide response has been for courts to close and for prisons and jails to ban visitation (with some exceptions for lawyers.) In light of this, every correctional facility in the state must ensure that people can reach their lawyers by phone or video. Most are not adequately equipped for that but this situation must change, as virtual meetings with counsel are a necessity that our justice system cannot afford to suspend — at any time.
This crisis has revealed many faults in our society, including the fact that we detain far too many people for reasons that are often not clear or well-supported. For decades, this nation’s jails and prisons have been the de facto answer to problems that require public health solutions. In light of the current pandemic, it is critically important that prosecutors, courts, jails and prisons take action now to mitigate the spread of COVID-19 in our publicly-funded incarceration facilities.
Brandon Garrett is the L. Neil Williams Professor of Law at Duke University School of Law. He directs the Center for Science and Justice at Duke.
Lauren Brinkley-Rubinstein, PhD, is an Assistant Professor of Social Medicine at UNC—Chapel Hill, and a core faculty member in the UNC Center for Health Equity Research.